A lifer expat mummy in Kuwait blogging on things to do in Kuwait for kids and adults, places to visit, fun and cultural events, general info, shopping bargains and interesting stuff. Email: LWDLIK@gmail.com

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Tuesday, November 2, 2010

4-Year-Old Can Be Sued for Negligence in Bike Crash, Rules NY Judge

NEW YORK (CBS) Two 4-year-olds, a girl and a boy, are racing bicycles with training wheels on a New York City sidewalk when they crash into an 87-year-old woman, who is severely injured. Can the 4-year-olds be sued for negligence? A Manhattan State Supreme Court Justice has ruled yes, in a case reported Thursday in the New York Law Journal.
Justice Paul Wooten did not find that 4-year old Juliet Breitman is liable, but permitted a lawsuit brought against the girl, a boy, and their parents to move forward, according to The New York Times.
The suit claims that in April 2009, Juliet, and Jacob Kohn, who were both 4, were racing their bikes under their mothers' supervision, on the sidewalk along a Manhattan street.
At some point in the race, they struck an 87-year-old woman named Claire Menagh, who, according to the complaint, was "seriously and severely injured," suffering a hip fracture that required surgery. She died three weeks later. Her estate sued the children and their mothers, claiming they had acted negligently during the accident.
In a response, Juliet's lawyer, James P. Tyrie, argued that the girl was not "engaged in an adult activity" at the time of the accident -- "She was riding her bicycle with training wheels under the supervision of her mother" -- and was too young to be held liable for negligence. In legal papers, he added, "Courts have held that an infant under the age of 4 is conclusively presumed to be incapable of negligence."
But Justice Wooten declined to stretch that rule to children over 4. On Oct. 1, he rejected a motion to dismiss the case because of Juliet's age, noting that she was three months shy of turning 5 when Ms. Menagh was struck, and thus old enough to be sued.
The child's lawyer, "correctly notes that infants under the age of 4 are conclusively presumed incapable of negligence," Justice Wooten wrote in his decision, referring to a 1928 case.
"Juliet Breitman, however, was over the age of 4 at the time of the subject incident. For infants above the age of 4, there is no bright-line rule." The girl's lawyer had also argued that Juliet should not be held liable because her mother was present; Justice Wooten disagreed.
"A parent's presence alone does not give a reasonable child carte blanche to engage in risky behavior such as running across a street," the judge wrote.
He added that any "reasonably prudent child," who presumably has been told to look both ways before crossing a street, should know that dashing out without looking is dangerous, with or without a parent there.
The crucial factor is whether the parent encourages the risky behavior; if so, the child should not be held accountable.
In Ms. Menagh's case, however, there was nothing to indicate that Juliet's mother "had any active role in the alleged incident, only that the mother was 'supervising,' a term that is too vague to hold meaning here," he wrote.
He concluded that there was no evidence of Juliet's "lack of intelligence or maturity" or anything to "indicate that another child of similar age and capacity under the circumstances could not have reasonably appreciated the danger of riding a bicycle into an elderly woman."